COCKE V. HALSEY, 41 U. S. 71 (1842)

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U.S. Supreme Court

Cocke v. Halsey, 41 U.S. 16 Pet. 71 71 (1842)

Cocke v. Halsey

41 U.S. (16 Pet.) 71


The Constitution of Mississippi declares that clerks of the circuit court, probate, and other inferior courts shall be elect by the electors of the county for two years. The Legislature of Mississippi, by statute, declared that when, from sickness or other unavoidable causes, the clerk of the probate court shall be unable to attend the court, the judge of probate may appoint a person to act as clerk pro tempore, who shall take an oath faithfully to execute the duties of the office &c. Deeds of trust and mortgages are declared to be void against creditors and purchasers unless they shall be acknowledged or proved and delivered to the clerk of the proper court to be recorded, and they shall be valid only from the time they are so delivered to the clerk. Robert D. Haden was elected clerk of the Court of Probate for the County of Lowndes, and during the two years for which he was so elected, he went to the State of Tennessee on business, and being absent when the court of probate sat, William P. Puller was, by the judge of the court of probate, appointed the clerk pro tempore, and having taken the oath of office, he executed the duties of clerk during the session of the court and afterwards until the return of the regularly elected clerk. After the adjournment of the court, a deed of trust, duly executed, by which certain personal property was conveyed for the benefit of creditors was delivered to William P. Puller, and was by him entered for record. An execution was levied on the property thus conveyed by a creditor of the party who had executed the deed; the regularity of the recording of the deed was denied on the ground that the clerk of the probate court pro tempore had no authority to receive the deed of trust for record after the adjournment of the court of probate. Held that the clerk pro tempore was authorized to record the deed of trust under the Constitution and law of Mississippi.

In every instance in which a tribunal has decided upon a matter within its regular jurisdiction, its decision must be presumed proper and is binding until reversed by a superior tribunal, and cannot be affected, nor the rights of persons dependent upon it be impaired, by any collateral proceeding. Cases cited, Thompson v. Tolmie, 2 Pet. 157; United States v. Arredondo, 6 Pet. 720; Voorhees v. Bank of the United States, 6 Pet. 473; Philadelphia & Trenton Railroad Company v. Stimpson, 14 Pet. 458.

On 24 March 1838, James Carter & Company executed a deed of trust to William L. Moore for the purpose of securing the payment of certain sums of money to the Commercial Bank of Columbus, by which they conveyed, among other things, chanrobles.com-red

Page 41 U. S. 72

certain slaves, then in Lowndes County, Mississippi, in trust to sell the said property for the benefit of the bank in Columbus. This deed was presented for record to the Office of the Clerk of the Court of Probate for Lowndes County on 24 March 1838, the day on which it was executed, and was endorsed, "Received in my office for record, on 24 March 1838, William P. Puller, clerk pro tem." And it was afterwards certified to have been recorded on the same day, under his hand and seal, by William P. Puller, clerk pro tem.

At the time this record and certificate were made by William P. Puller as clerk pro tempore, one Robert D. Haden was the Clerk of Probate for the County of Lowndes, duly elected, qualified and sworn. Haden was duly elected in November, 1837, for two years, and entered upon the discharge of his duties sometime in the month of February 1839. Haden visited the State of Tennessee on business, and did not return in time to perform the duties of clerk at the March term 1839. In consequence of his absence, Thomas Sampson, Esquire, judge of probates, upon the opening of the court of probate at March term 1839, appointed William P. Puller to act as clerk pro tempore during the absence of Haden. This deed was recorded by Puller, during the absence of Haden but after the March term of the court of probate, not while the said court was in session. Haden afterwards returned and resumed the duties of his office. The above-described property was, by the trustee, left in the possession of James Carter & Company.

At the May term, 1838, of this court, judgment in the above-entitled case was obtained against the said James Carter & Company. Execution was issued upon this judgment and was levied on the assigned negroes in the possession of James Carter & Company. Upon the levy's being made, the trustee came forward and claimed this property and gave the necessary bond, and the issue was now before the Court to try the right to the said slaves.

If the deed of trust was properly and legally recorded, then it was admitted that the judgment in the above case was no lien upon said slaves, and that the trustee would be entitled to the same; otherwise, if the deed was not duly and legally recorded, the slaves were subject to the satisfaction of the said judgment. chanrobles.com-red

Page 41 U. S. 73

The court adjudged that the trust deed was not duly and legally recorded, and that the said acts and proceedings of the said William P. Puller, as clerk pro tempore, in the recording of the said trust deed was without authority of law and was altogether void, and so instructed the jury. To this opinion the plaintiff excepted, and the jury having found a verdict according to the opinion of the court, the plaintiff prosecuted this writ of error to the judgment of the circuit court on the verdict. chanrobles.com-red

Page 41 U. S. 81


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